Keeping power of NSA in check no easy task

August 22, 2006

By Freedom Newspapers

Last week’s decision by U.S. District Court Judge Ann Diggs Taylor in Detroit, holding that the National Security Agency’s unwarranted surveillance program on U.S. residents in contact with suspected terrorists overseas is unconstitutional and illegal, may not stand up in the course of the appeals process for various reasons. Nonetheless it is a welcome opening to an essential discussion.

How do you call a president to account if he violates a law passed by Congress or the Constitution? How do you terminate an illegal program or modify it so it operates within the law? Unfortunately, the answer will not be easy to find.

The NSA’s program of wiretapping U.S. residents suspected of being in contact with terrorists overseas, conducted in secret before being exposed by the New York Times last December, does raise serious constitutional and legal questions.

The Fourth Amendment requires that all searches be “reasonable” and that search warrants be issued only upon demonstration of probable cause. Courts have ruled that wiretapping is subject to these constraints. They also have ruled that some searches, but not many, may be conducted without warrants.

In 1978, Congress passed the Foreign Intelligence Surveillance Act, which established a secret court to handle requests for warrants to surveil U.S. residents in conjunction with national security investigations. The act specifically declared that its procedures were the only way the government was allowed to spy on U.S. residents.

So did the NSA surveillance program violate the Constitution and the law? Judge Taylor, a Carter appointee, ruled that it did.

Robert Levy, a constitutional scholar at the Cato Institute, said he didn’t think the case against the surveillance program based on the Fourth and First Amendments was a strong one and probably would be thrown out by an appeals court. Our reading of Judge Taylor’s decision suggests he could be right.

However, the case that the program violated the FISA law is much stronger.

This case could evaporate on the issue of standing – whether those who sued demonstrated sufficient concrete harm to themselves to have the courts take up their claim. Judge Taylor granted the plaintiffs standing but an appeals court could insist on a tighter standard.

Nonetheless, Judge Taylor’s decision is a welcome beginning to a discussion of how a democracy can keep a president with an aggressive approach to his “inherent powers,” bound by the laws and the Constitution. We wish we had the definitive answer.